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Recent Posts

04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below.

In his comments to my chapter “Targeting Co-Belligerents,” Craig Martin asks a very pertinent question: Is the US really in an armed conflict with al-Qaeda?  Or, more abstractly, can a state ever be in an armed conflict with a non-state terrorist organization?  Martin is correct to assume that an affirmative answer to this question is necessary before any of the in bello linking principles are used in my analysis.

Although this is an issue that I largely cabined from my argument in the chapter, it is now a question that very much animates my current research.  Here is my thinking:  At least part of the skepticism regarding the existence of an armed conflict with AQ or other NSAs, stems from an uncertainty regarding classification.  The armed conflict allegedly cannot be a non-international armed conflict (NIAC) because it crosses international boundaries.  On the other hand, though, it cannot be an international armed conflict (IAC) because one of its parties is not a traditional state actor – presumably a condition-precedent for any IAC.  It not falling into either sub-category, it cannot be an armed conflict at all.

I find this argument suspicious, though my thinking on the issue is still evolving.  I am not quite clear on the supposed legal evidence for the proposition that IAC and NIAC occupy the entire field of the concept of armed conflict.  That’s only true when the concepts are defined in opposition to each other (where NIAC would simply refer to anything that is not a traditional IAC).  That was the style of analysis that the Supreme Court used in Hamdan, and that led them to conclude that the armed conflict against AQ was indeed a NIAC.  I found this argument persuasive.

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04 Jun

[Craig Martin is Associate Professor of Law at Washburn University School of Law, and author of another of the chapters in Targeted Killings]

This post is part of the Targeted Killings Book Symposium. Other posts in this series can be found in the related posts below. Jens Ohlin’s chapter in Targeted Killings, “Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument. Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing. Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process.
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04 Jun

[Jens David Ohlin is an Associate Professor of Law at Cornell Law School; he blogs at LieberCode.] In April 2011, a group of legal scholars gathered at the University of Pennsylvania Law School for a conference on targeted killings.  The idea was to bring together experts in diverse fields – international law, legal and moral philosophy, military law, and criminal law – into...

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04 Jun

Perhaps as a good primer to our upcoming book discussion this week, a few drone-related news items: Despite Pakistan's requests to the US to stop the program, the third drone strike in Pakistan in as many days has taken its toll on new victims; irrespective of the method of civilian or combatant counting, there are at least 27 dead. The Washington Post...

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03 Jun

I want to congratulate my friend Andrew Cayley, the Chief International Co-Prosecutor of the ECCC and a barrister at London's Doughty Street Chambers, on being named QC in England.  Given the constant turmoil that has roiled the ECCC over the past year, the news is a welcome (re-)affirmation of Andrew's legal ability.  The ECCC is lucky to have him....

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03 Jun

Calls for Papers The 2012 Critical Legal Conference takes place in Stockholm between September 14-16, 2012. Paper proposals on International Law, Genocide and Imperialism: The Colonial Origins of Human Rights? are due on 15 June 2012. The American Society of International Law has issued a call for papers for its 107th Annual Meeting in April 2013. Proposals need to be submitted online by June 22, 2012. Upcoming...

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02 Jun

The Pre-Trial Chamber has held that Article 95 of the Rome Statute applies to requests for surrender, thereby agreeing with Dapo and Jens and disagreeing with me. It's a poorly reasoned decision, giving a completely counterintuitive reading to the "such evidence" language in the article (pretending that the clause in question doesn't actually contain the word "such") and ignoring all...

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02 Jun

This week on Opinio Juris, Roger Alford marked Memorial Day with the Battle of Blenheim poem, and Deborah Pearlstein weighed in on the discussion about Chris Hayes’ controversial suggestion that the label of “hero” is too often used to refer to US service personnel. Deborah also posted a snippet from the NY Times report on Obama’s “Kill List” in the conflict...

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01 Jun

Fred Shapiro and Michelle Pearse have just published in the Michigan Law Review "The Most-Cited Law Review Articles of All Time." It is a fascinating read, and includes some choice nuggets about international law scholarship. Among the more interesting findings is that of the recent era (1990-2009) only three international law scholars were among the most-cited: Curtis Bradley,...

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01 Jun

Rather than deride opponents as the "black helicopter" crowd, the proponents of US ratification of UNCLOS should take seriously the upcoming hearings as a chance to weigh the complex policy choices presented by UNCLOS.  Prof. Craig Allen of the University of Washington offers this very sensible and persuasive take at (of all places) Fox News: The decision to ratify a treaty...

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01 Jun

[Stephen G.A. Pitel is Associate Professor at Western University, Faculty of Law] On May 30, 2012, residents of Ecuador started an action in the Ontario Superior Court of Justice seeking to enforce a judgment in their favour of an Ecuadorian court against Chevron.  The amount of the judgment is a staggering $18 billion.  Chevron has announced that it will resist the enforcement litigation in Ontario. Under Ontario’s common law, confirmed relatively recently by the Supreme Court of Canada in Beals v Saldanha, the test for whether a court will enforce a foreign judgment ordering the payment of money has three requirements.  First, the judgment must be final.  Second, the court granting the judgment must have had jurisdiction on a particular basis.  This is sometimes called jurisdiction in the international sense or jurisdictional competence.  Third, the judgment must be for a fixed sum of money and not a tax or penalty.  In general see Stephen G.A. Pitel & Nicholas S. Rafferty, Conflict of Laws at 159-73. On the first requirement, a judgment is considered to be final even though there is time remaining within which to launch an appeal or an appeal has in fact been launched (as is the case here): Nouvion v Freeman (1889), 15 App Cas 1 (HL) at 10-11 and 13.  However, in such a situation it is relatively straightforward for the defendant in the enforcement proceedings to obtain a stay of the action on the basis that the court should await the results of the appeal.  It would seem likely that Chevron could have the Ontario proceedings stayed pending the results of the appeal in Ecuador.  Even if the enforcement proceedings are stayed, starting them can still have advantages to the plaintiff.  The stay does not stop the plaintiff attempting to obtain a Mareva injunction to freeze assets or other forms of interlocutory relief.
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01 Jun

The NYT has another big expose today on one of the Obama Administration's secret war, this time detailing the President's authorization of cyberattacks on Iran's nuclear facilities.  From his first months in office, President Obama secretly ordered increasingly sophisticated attacks on the computer systems that run Iran’s main nuclear enrichment facilities, significantly expanding America’s first sustained use of cyberweapons, according to...

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